In the recent case of Bombardier Transportation UK Ltd v Merseytravel, the Technology and Construction Court considered the application of Bombardier to vary a consent order due to a tenderers entitlement to fully investigate comparative treatment of tenders and concerns.
Bombardier had put in a tender to supply Merseytravel with rolling stock and other services. Bombardier were unsuccessful in their tender and alleged that their tender had not been treated in the same was as that of the successful company, Stadler.
Bombardier and Stadler are two of a group of tenderers who regularly compete against one another for major contracts around the world.
In February 2017, consent orders were entered into and approved by the court which provided for the creation of a confidentiality ring. This confidentiality ring included Merseytravel, Bombardier, Stadler and a number of other tenderers to provide for the exchange of information during the procurement process. The orders specified individuals to whom confidential information and highly sensitive information, which included details of the successful tender, could be disclosed. The confidential information was to be supplied electronically however only lawyers could view the documents in that form and non-legal consultants were to review it in hard copy. The information deemed to be highly sensitive was only to be disclosed in hard-copy form and non-legal consultants were not entitled to review it at all.
In March 2017, Bombardier made an application to the court to vary the terms of the February 2017 consent orders dealing with the disclosure of confidential information and highly sensitive documentation. The application gave rise to a number of issues for the court to consider.
The court had to determine whether:
1. The court should permit major amendments to a consent order so soon after the parties agreed to the terms.
2. The full group within the confidentiality ring should be permitted to review both the confidential and highly sensitive information.
3. Bombardier’s global services project manager should be added to the confidentiality ring and be permitted to review both sets of information on behalf of Bombardier.
4. The highly sensitive information should be disclosed in electronic format at Bombardier’s solicitor’s offices.
5. Bombardier’s application was bona fide or whether it was a tactical attempt to gain access to highly confidential information.
The court held that parties were entitled to apply to vary consent orders where practical difficulties had since become apparent, and that in this case Bombardier had put forward a prima facie case that not only could all those in the confidentiality ring review the confidential information but the highly sensitive information as well.
The court did not agree that Bombardier’s global services project manager should be added into the confidentiality ring as they believed that the risks outweighed Bombardier’s aims and requirements. The court did however set out that if Bombardier’s external consultants were unable to fulfil their requirements then they were entitled to renew the application.
The court could see no reason why the highly sensitive information should not be disclosed in the same electronic format as the confidential information nor why the highly sensitive information should not be held in the same manner as the confidential information.
The court held that Bombardier’s application was bona fide and was an application made to aid them in reviewing Merseytravel’s procurement process in full details.
This case highlights that even where consent orders have been approved by the court, applications to amend or vary can be made where it is practical to do so. Consent orders should be varied where it is found that they will cause practical difficulties to the parties.
The courts are aiming to give practical business efficacy to business contracts and processes without causing a barrier to those parties deemed to have lesser bargaining power.